MDS Courier Services

National Labor Relations Board - Board Decisions

May 18, 1979

242 N.L.R.B. 405 (N.L.R.B. 1979)

MDS COURIER SERVICES. INC.
MDS Courier Services, Inc. and Freight, Construc-
tion, General Drivers, Warehousemen & Helpers,
Local 287, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Case 32-RC-345
May 18, 1979
DECISION AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election approved by the Regional Director
for Region 32 on June 7, 1978, an election by secret
ballot was conducted on June 30, 1978, under the
direction and supervision of said Regional Director.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that, of
approximately 32 eligible voters, 30 cast ballots, of
which 12 were for and 8 against the Petitioner, and 10
were challenged. The challenged ballots were suffi-
cient in number to affect the results of the election.
Timely objections to conduct affecting the results of
the election were filed by the Employer.
In accordance with the National Labor Relations
Board Rules and Regulations, series 8, as amended,
the Regional Director conducted an investigation
and, on September 7, 1978, issued his Report on Ob-
jections and Challenged Ballots, order, and notice of
hearing, in which he recommended that the objec-
tions be overruled in their entirety and ordered that a
hearing be held to resolve the substantial and mate-
rial factual issues raised with respect to the 10 chal-
lenged ballots. Inasmuch as no exceptions were filed
to the Regional Director's report and no request for
special permission to appeal from his order was filed
by any party, the Board, by an Order dated Septem-
ber 27, 1978, adopted the Regional Director's recom-
mendations with respect to the objections and or-
dered that a hearing be held with respect to the 10
challenged ballots. Thereafter, a hearing was held be-
fore Hearing Officer Bernard T. Hopkins for the pur-
pose of resolving the issues raised by the challenges to
the ballots of Rod Yamasaki, Karl Roth, Mike King,
Frank Castillo, Jose Villareal, Helen Holland, Ruth
Kellogg, Beatrice Obergon, Gorge Obergon, and Do-
lores Ross.
The hearing was conducted in accordance with the
provision of Section 102.69(e) of the Board's Rules.
All parties were represented and afforded full oppor-
tunity to be heard, to present and examine witnesses,
to introduce relevant evidence, and to make oral ar-
guments during the course of the hearing.
On January 4, 1979, Hearing Officer Hopkins is-
sued and served on the parties his Report on Chal-
lenged Ballots. In his report, the Hearing Officer rec-
ommended that, based on the stipulation of the
parties at the hearing, the challenge to the ballot of
Ruth Kellogg be sustained and the challenges to the
ballots of Rod Yamasaki, Karl Roth, Mike King,
Frank Castillo, Jose Villareal, and Gorge Obergon be
overruled. The Hearing Officer further recommended
in his report that the challenges to the ballots of Do-
lores Ross and Beatrice Obergon be overruled and the
challenge to the ballot of Helen Holland be sustained.
Thereafter, the Employer filed exceptions, with a sup-
porting brief, limited to the recommendation that the
challenge to Holland's ballot be sustained. The Em-
ployer contends that Holland was not only classified
as a driver but was performing the duties of a driver
and that, pursuant to the agreement between the par-
ties, she should be included in the stipulated unit of
drivers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the entire record in this
case, including the Hearing Officer's Report on Chal-
lenged Ballots and the Employer's exceptions and
brief, and hereby adopts the findings,' conclusions,
and recommendations of the Hearing Officer,' only to
the extent consistent herewith.
The parties stipulated, and we find, that the follow-
ing employees constitute a unit appropriate for the
purposes of collective-bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time, in-house
and outside service drivers of the Employer, as-
signed to the Employer's San Jose terminal, in-
cluding those drivers working in Salinas and
Santa Maria, California; excluding all other em-
ployees, office clerical employees, guards, and su-
pervisors as defined in the Act.
The Hearing Officer recommended sustaining the
challenge to the ballot of Helen Holland on the
ground that, although she and her husband were
hired as a team with the understanding that they
would share the work on each of the two routes they
were assigned, Mrs. Holland did not ever perform
I The Employer has excepted to certain credibility resolutions of the Hear-
ing Officer. It is the established policy of the Board not to overrule a hearing
officer's credibility resolutions unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. The Coca-
Cola Bottling Compan' of Merphis. 132 NLRB 481, 483 (1961 ); Sretch-Tex
Co., 118 NLRB 1359. 1361 (1957). We find no sufficient basis for disturbing
the credibility resolutions in this case.
2 In the absence of any exceptions thereto, we adopt proforma the Hearing
Officer's recommendations with respect t, the remaining challenges.
242 NLRB No. 67
405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the actual driving on either route and does not
possess a driver's license. The Hearing Officer found
that Mr. Holland actually drives the vehicle for both
routes, while Mrs. Holland performs most of the car-
rying of merchandise to and from the customers'
places of business at the stops along the two routes
and also fills out the time and mileage reports for
both routes.
The Employer contends that Mrs. Holland per-
forms the functions of a service driver, inasmuch as
she performs pickups and deliveries for customers.
The Employer notes that at other terminals it has
employees classified as drivers who do no driving, but
makes pickups and deliveries while walking along a
route to which they are driven by another employee.
The Employer also argues that excluding Helen Hol-
land from the unit of drivers would leave a residual
unrepresented unit of one employee at this terminal.
We find merit in the Employer's exceptions.
It is well established under Board law that, "In
stipulated unit cases, the Board's function is to ascer-
tain the parties' intent with regard to the disputed
employee and then to determine whether such intent
is inconsistent with any statutory provision or estab-
lished Board policy."3 There is no contention by any
party in this case that the inclusion of Holland within
the stipulated unit of drivers would be inconsistent
with any statutory provision or Board policy. Thus,
the only issue is whether the parties' expressed intent
was to include Holland in the unit or not.
Here, the clear and unambiguous intent of the par-
ties, as expressed in the stipulation, was to include all
"service drivers ... including those drivers working in
.. Santa Maria . . ." in the unit. Since Mr. and Mrs.
Holland were the only employees classified as drivers
3 The Tribune Company, 190 NLRB 398 (1971). See also J. Olson Machine
Co., Inc., 196 NLRB 598 (1972); While Cloud Products, Inc., 214 NLRB 516
(1974).
who were working in Santa Maria at the time the
stipulation was signed and since the only job classifi-
cation which was specifically excluded from the stipu-
lated unit was that of office clerical employee, the
parties clearly intended to include Helen Holland in
the unit. Further, the parties could not have had any
specific intent to exclude Helen Holland from the
unit, despite the broad language in the stipulation ex-
cluding "all other employees," where neither party
was even aware at the time the stipulation was signed
that Mrs. Holland did not actually drive a vehicle on
her route.4 The absence of any intent to exclude Mrs.
Holland is also indicated by the fact that her exclu-
sion would leave a residual unit of one unrepresented
employee who possesses no community of interest
with the other excluded employees. Accordingly, in
light of the clear intention of the parties to include
Helen Holland in the stipulated unit and in view of
the fact that she actually performs the duties of and is
classified as a driver, we hereby overrule the chal-
lenge to her ballot.5
DIRECTION
It is hereby directed that the Regional Director for
Region 32 shall, pursuant to the Rules and Regula-
tions of the Board, within 10 days from the date of
this Direction, open and count the ballots cast by
Rod Yamasaki, Karl Roth, Mike King, Frank Castil-
lo, Jose Villareal, Helen Holland, Delores Ross, Be-
atrice Obergon, and Gorge Obergon, and thereafter
prepare and cause to be served on the parties a re-
vised tally of ballots and an appropriate certification.
'See Apple Tree Chevrole, Inc., 237 NLRB 867 (1978). See also Charlie
Rossie Ford, Inc., 227 NLRB 565 (1976).
5 Chairman Fanning would also rely on the community of interest which
Holland shares with the other drivers as an additional basis for overruling
the challenge to her ballot. See his concumng opinion in The Tribune Com-
pany, supra.
406